William Michael Kemp, Sui Juris
c/o 2108 General Delivery
Gadsden, Alabama state
zip code exempt
In Propria Persona
Under Protest, Necessity,
and by Special Visitation
all rights reserved
CIRCUIT COURT OF ETOWAH COUNTY
ALABAMA STATE
Ex Parte ) Case No. #CC-95-1083
)
William Michael Kemp ) APPLICATION FOR EXTRAORDINARY
) WRIT OF HABEAS CORPUS:
________________________________) Alabama Statute 15-21-8
To the Honorable Judge of this Court:
APPLICATION FOR
THE EXTRAORDINARY WRIT OF HABEAS CORPUS
COMES NOW Richard Hamilton Hayward, Relator, and files this His
APPLICATION FOR THE EXTRAORDINARY WRIT OF HABEAS CORPUS on behalf
of William Michael Kemp, Citizen of Alabama state (hereinafter
"Applicant") and here proceeds to secure the release of your
Applicant, who is presently restrained of His liberty as the
result of the issuance of a BOND, a true copy of which is
attached and marked "Exhibit A", the same having been issued on
or about September 8, 1995, on authority of Judge William W.
Cardwell of Circuit Court of Etowah County Alabama. Applicant
will show that your Applicant is entitled to Habeas Corpus
relief, and that the Judgment of the underlying Circuit Court, as
is further delineated hereinbelow, is void for want of
jurisdiction and is otherwise tainted, as is further set forth in
detail and at length hereinbelow, as follows:
Application for Extraordinary Writ of Habeas Corpus:
Page 1 of 13
I.
JURISDICTION
1. As jurisdictional authority for this Application for
the Extraordinary Writ of Habeas Corpus, your Applicant relies
upon the Constitution and laws of, and for, the United States of
America, and especially the federal Bill of Rights; the
Constitution and laws of, and for, Alabama state, especially the
Bill of Rights as stated therein; the ancient Common Law
respecting Writs of Habeas Corpus; the Alabama Statutes and Code
of Criminal Procedure respecting Habeas Corpus, Alabama Statutes
15-21-1 thru 15-21-34, including, but not limited to, lawful
provisions respecting your Applicant's Right to the effective
assistance of Counsel. See Sixth Amendment, in particular.
2. Collectively, these fundamental Constitutional, Common
and statutory laws are binding on this Court and, inter alia,
provide that:
15-21-1. Persons entitled to prosecute writ: Generally.
Any person who is imprisoned or restrained of his liberty in
the state of Alabama on any criminal charge or accusation or
under any other pretense whatever may prosecute a writ of
habeas corpus according to the provisions of this chapter to
inquire into the cause of such imprisonment or restraint.
II.
APPLICANT IS RESTRAINED OF HIS LIBERTY AND IS "IN CUSTODY."
3. Your Applicant is presently restrained of His liberty
by virtue of His being released from actual custody arising from
His arrest on September 8, 1995, pursuant to a bond as stated
above.
4. Applicant's release from actual custody of the Sheriff,
pursuant to the terms of the bond, continues from the day of His
arrest to the present. For a copy of the bond, see Exhibit A.
Application for Extraordinary Writ of Habeas Corpus:
Page 2 of 13
5. For purposes of the Extraordinary Writ of Habeas
Corpus, your Applicant is constructively "in custody," as
distinguished from being in actual custody, and is therefore
entitled to judicial review as to the propriety of the present
restraint, via the Great Writ.
6. The United States Supreme Court has ruled that a
release on a recognizance bond constitutes custody. Quoting from
Hensley v. Municipal Court, 411 U.S. 345, 36 L.Ed.2d 294, 93
S.Ct. 1571, the United States Supreme Court has stated that, for
purposes of the Writ of Habeas Corpus, the defendant was "in
custody," although he had been released on his own recognizance.
7. The Hensley court, quoting from Jones v. Cunningham,
371 U.S. 236, 9 L.Ed.2d 285, 83 S.Ct. 373, 92 ALR 2d 675, at page
240, observed that the defendant is subject to restraints "not
shared by the public generally ...."
III.
RELATOR AUTHORIZED TO PETITION FOR RELIEF
8. Richard Hamilton Hayward, Relator, has signed the
instant Application and contemplates lodging the same with the
Clerk of this Court, in the belief that this Court will grant
Relator's previously filed Request for Leave to File this
Application. Further, Applicant seeks hereby to file and present
this Application to this Honorable Court, pursuant to the
authority of Alabama Statute 15-21-4, to wit:
"Application for a writ of habeas corpus must be made by
petition, signed either by the party himself for whose
benefit it is intended or by some other person on his behalf
...."
Application for Extraordinary Writ of Habeas Corpus:
Page 3 of 13
IV.
RELATOR'S REQUEST FOR CONSIDERATION
9. Relator requests the consideration of this Court as to
Applicant proceeding In Propria Persona, without the aid of
licensed counsel, pursuant to the rule of law established in
Hughes v. Rowe, 449 U.S. 5, 9; 101 S.Ct. 173, 176 (1980).
V.
BACKGROUND
10. A review of the known relevant facts respecting this
application for the Extraordinary Writ of Habeas Corpus are as
follows:
a. On September 8, 1995, at approximately 2:00 p.m., your
Applicant was confronted by uniformed officers who appeared
at Applicant's residence; Applicant was arrested and taken
into custody; and officers then entered, and then began to
search, Applicant's residence; and,
b. The search apparently produced items which were seized and
taken by officers from the scene; there was no evidence of
a search warrant or inventory of items seized which was left
at the residence by officers; and,
c. On September 8, 1995, a search warrant was obtained at
approximately 3:00 p.m.; and,
d. Applicant made bail and was released from custody on
September 8, 1995; and,
e. On or about September 11, 1995, Applicant appeared at the
Sheriff's office and there obtained: (1) the search
warrant, writ portion only together with the affidavit of
Judge William Cardwell; (2) Police Report; and (3) arrest
warrant which was absent any evidence of an affidavit in
support; and,
f. A proceeding of some undetermined description was held in
September of 1995 before a District Judge in which the Judge
apparently ruled in favor of "probable cause"; and,
g. Applicant was arraigned by the Judge's entering a plea of
"Not Guilty" for Him; and,
h. On November 11, 1996, a jury trial was held before Circuit
Judge Donald W. Stewart, resulting in the conviction of
Applicant of the lesser included offense of simple
possession of a controlled substance; and,
Application for Extraordinary Writ of Habeas Corpus:
Page 4 of 13
i. On November 25, 1996, after being convicted by a trial on
the merits, Applicant was sentenced to twelve (12) months in
the Etowah County Jail and fined $1,000.00, plus costs of
court; and,
j. On November 25, 1996, Applicant caused to be filed with the
Alabama Court of Criminal Appeals His Petition for Writ of
Mandamus, and the same was denied by that court on December
2, 1996; and,
k. On December 5, 1996, Applicant caused to be filed with the
Circuit Court His post-judgment Motion to Set Aside the jury
verdict, and the same was set for hearing on January 7,
1997; and,
l. On January 6, 1997, Applicant filed His Petition seeking
removal of the State action to the District Court of the
United States; and,
m. On January 10, 1997, by ORDER of the United States District
Court [sic], Applicant's Petition for Removal was denied and
the case was remanded to the Alabama Circuit Court; and,
n. As of this date, no hearing has been held or re-scheduled on
Applicant's post-trial Motion to Set Aside.
VI.
APPLICATION FOR THE EXTRAORDINARY WRIT OF HABEAS CORPUS
11. Richard Hamilton Hayward, Relator, on this Application
for the Extraordinary Writ of Habeas Corpus, requests of this
Honorable Court that this Application be in all things granted,
and further requests this Honorable Court to issue the
Extraordinary Writ of Habeas Corpus directed to the Sheriff of
Etowah County, Alabama state, and/or any other person into whose
custody, actual or constructive, your Applicant has been or may
be remanded, to produce the Person and Body of your Applicant, in
and before this Honorable Court at a date and time certain, in a
manner consistent with the Rule of Law established by Alabama
Statute 15-21-14, establishing a date and time certain for a
hearing on the relief requested by this Application so that a
statutorily sufficient adjudicatory hearing may be held to
determine the propriety, if any there be, for the restraint upon
the Person and liberty of the Applicant herein. Upon information
and belief, the Person of Applicant is not presently accused of
any misdemeanor nor is He presently under any felony indictment
or other felony charges related to the instant or other matters,
except for the charge(s) from which this proceeding arose.
Application for Extraordinary Writ of Habeas Corpus:
Page 5 of 13
12. In strict compliance with the requisites of an
Application for the Extraordinary Writ of Habeas Corpus, as set
forth in Alabama Statute 15-21-4 pertaining to the contents and
requisites of a Writ of Habeas Corpus, Richard Hamilton Hayward,
Relator, hereby states as follows:
a. That this Application for the Extraordinary Writ of Habeas
Corpus, after being signed by Relator and then lodged with
the Clerk of this Court, pending a judicial grant of leave
to file, and upon presentation by Relator, Relator
represents that this Application is being made on behalf of
Applicant, who is presently illegally restrained of His
liberty and is presently in the constructive custody of the
Sheriff of Etowah County, Alabama state, by virtue of a bond
now at issue and is presently released on the said bond, as
is further delineated hereinabove; and
b. That Applicant is being restrained of His liberty by virtue
of a "BOND", a true copy of which is attached and marked
"Exhibit A", the same being issued on or about September 8,
1995, on authority of Judge William W. Cardwell of the
Circuit Court of Etowah County, Alabama state; and
c. That the restraint of Applicant herein complained of arises
from a warrant for the arrest of Applicant issued on
September 8, 1995, alleging to arise from violations of the
laws of the State of Alabama respecting possession of
controlled and/or illegal substances; and
d. A true copy of said warrant for the arrest of Applicant is
attached hereto and marked "Exhibit B"; and
e. That this Application contains a request for relief, as is
set forth below; and
f. That this Application is verified by the oath of the Relator
herein, Richard Hamilton Hayward, to the effect that the
allegations in this Application are true and correct,
according to the belief of Relator.
Application for Extraordinary Writ of Habeas Corpus:
Page 6 of 13
VII.
SPECIFIC ERRORS IN JUDICIAL PROCEDURES
WHICH HAVE RESULTED IN THE ILLEGAL RESTRAINT OF LIBERTY
ERROR ONE
APPLICANT'S RIGHTS TO DUE PROCESS OF LAW WERE VIOLATED IN THAT
THE WARRANT FOR SEIZURE AND ARREST AT ISSUE WERE, AND ARE,
FATALLY DEFECTIVE AS A MATTER OF LAW.
13. The underlying warrant for seizure of property and
arrest of Applicant was fatally defective, due to the absence of
a sufficient and lawful affidavit in support thereof.
14. The underlying warrant for seizure of property and
arrest of Applicant was fatally defective, due to the untimely
manner in which the warrant was obtained, in that said warrant
was obtained after the arrest and seizure were effected.
15. Because of these material defects, evidence seized by
fatally defective warrants was admitted against Applicant at
trial and thus prejudiced His Right to due process of law.
ERROR TWO
APPLICANT'S DUE PROCESS RIGHTS WERE VIOLATED, IN THAT THE COURT
HAS FAILED TO AFFORD TO APPLICANT A PROPER JUDICIAL DETERMINATION
OF A WAIVER OF COUNSEL AND, AS A RESULT, APPLICANT DID NOT
KNOWINGLY, INTENTIONALLY, VOLUNTARILY AND INTELLIGENTLY WAIVE HIS
RIGHT TO COUNSEL, PURSUANT TO RIGHTS GUARANTEED TO HIM UNDER THE
FIFTH AND SIXTH AMENDMENTS TO CONSTITUTION FOR THE UNITED STATES
OF AMERICA, AND THE CORRESPONDING PROVISIONS OF THE CONSTITUTION
FOR ALABAMA STATE.
16. As background for this section, Applicant was attached
by a WARRANT which was issued after the arrest and search on
September 8, 1995.
17. During hearings held before the District and Circuit
Courts of Alabama, your Applicant was asked if He wanted Counsel,
to which, reportedly, Applicant's answer was that Applicant did
not want a licensed member of the State Bar of Alabama to
represent Him in the trial of the charges then pending.
Application for Extraordinary Writ of Habeas Corpus:
Page 7 of 13
18. Upon information and belief, Relator asserts that your
Applicant was, at that time and is now, incompetent as to, and
thus incapable of, comprehending the meaning of the term "Right
of Counsel", as said term applies to a civil and/or criminal
trial or pre-trial hearing which he was immediately and without
reasonable or sufficient notice required to respond and defend.
19. Then defendant, and here your Applicant, is a 47 year
old male who is in an altogether understandably precarious
physical condition, having serious physical and medical
disabilities, who is not a lawyer and has no legal training and
who does not (Relator has reason to believe) comprehend the full
meaning of His right(s) to Counsel or, for that matter, His other
Rights to a fair and full adversarial hearing in the adjudication
of the criminal allegations pending, and their implications.
20. Under the circumstances presented here, in the face of
a medical condition generally described above, the Defendant and
now your Applicant was merely asked by the District Court and the
Circuit Court if he wanted Counsel.
21. Under those questionable conditions, the implication
arising from these proceedings is that Applicant had the capacity
to discern the full significance of the question and its import
as it would affect His liberty. Apparently, the Court considered
Him not only competent to answer the question, but did in fact
accept His response as being entirely valid and sufficient, as a
matter of law, but failed entirely to make an adequate record of
that transaction which judicially determined the validity of the
alleged waiver.
Application for Extraordinary Writ of Habeas Corpus:
Page 8 of 13
22. On the contrary, Relator suggests that this record
presents circumstances which are not the stuff of which the legal
concept of a knowing and intelligent waiver of Counsel is
prudently made. In point of fact, Relator proffers that a high
probability of a denial of Counsel is evidenced by the present
state of record arising from the several proceedings, including
trial on the merits. In said proceedings, Applicant was
subjected to repeated hearings covering technical matters which
were, apparently and clearly (as is now evidenced by the
results), not within His capabilities or experience, and which
could not possibly have resulted from a knowing and intelligent
waiver of His Right to the effective assistance of Counsel during
His defense. All of the proceedings were made in adjudication of
the property and liberty of the Defendant, and now here your
Applicant.
23. On information and belief Relator states that both the
pre-trial hearing court as well as the trial court failed to make
meaningful inquiry into the limits on Applicant's ability,
knowledge, intelligence and cognizance of the dangers to which
Applicant was subjecting Himself.
24. Accordingly, Relator here asserts that the District and
Circuit Courts' failure to procure a knowing and intelligent
waiver of Applicant's Right to Counsel violated Applicant's due
process rights and rendered the pre-trial proceedings and trial,
conviction, judgment, and sentence of the Trial Court to be
entirely void as being absent jurisdiction and in denial of
Applicant's fundamental Right to fair hearings consistent with
the well established standards of due process of law.
Application for Extraordinary Writ of Habeas Corpus:
Page 9 of 13
ARGUMENT AND AUTHORITIES WITH REGARD TO TRIAL COURT
ERROR THREE
a. APPLICANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL CANNOT
BE WAIVED, EXCEPT WITH A KNOWING, INTELLIGENT AND COMPETENT
WAIVER MADE AND EVIDENT UPON THE RECORD OF THE PROCEEDINGS.
25. The Sixth Amendment to the United States Constitution
states in pertinent part:
"In all criminal prosecutions, the accused shall enjoy the
right to ... have the assistance of Counsel for his
defence."
26. The United States Supreme Court has held in Johnson v.
Zerbst, 304 U.S. 458, that:
"... the sixth Amendment stands as a jurisdictional bar to a
valid conviction and sentence depriving [one] of his life or
his liberty. A court jurisdiction at the beginning of trial
may be lost in the courts of the proceedings due to a
failure to complete the court -- as the Sixth Amendment
requires -- by providing counsel for an accused who is
unable to obtain counsel, who has not intelligently waived
this constitutional guaranty, and whose life or liberty is
at stake. If this requirement of the Sixth Amendment is not
complied with, the court no longer has jurisdiction to
proceed. The judgment of the conviction pronounced by a
court without jurisdiction is void, and one imprisoned
thereunder may obtain release by habeas corpus." See
Johnson supra.
27. Further from Johnson v. Zerbst:
"This protecting duty imposes the serious and weighty
responsibility upon the trial judge of determining whether
there is an intelligent and competent waiver by the accused.
While an accused may waive the right to counsel, whether
there is a proper waiver should be clearly determined by the
trial court, and it would be fitting and appropriate for the
determination to appear upon the record." See Johnson supra
at 465.
b. CONTRARY TO THE GUIDELINES OF SETTLED LAW, THE TRIAL COURT
FAILED AFFIRMATIVELY TO MAKE OR INQUIRE INTO THE EXTENT THAT
YOUR APPLICANT WAS FULLY AND PROPERLY AWARE OF HIS RIGHT TO
COUNSEL, AND FURTHER DENIED AN ADEQUATE RECORD FOR THE
PURPOSE OF REVIEW.
Application for Extraordinary Writ of Habeas Corpus:
Page 10 of 13
28. Even though Applicant was noticeably without assistance
of Counsel, and despite the court's posing the naked question as
to Applicant's desire for Counsel, the trial court never fully
and properly advised Applicant of the possible consequences and
the implications which awaited Him as a result of the nature and
requirements of the pre-trial hearings, and the trial in chief.
29. Apparently, the trial court failed to make any
determination beyond that of a naked question and its cursory
answer, thus leaving the court and the record devoid of either an
affirmative attempt to discern Applicant's comprehension of the
question or the implications, including incarceration, which may
have, and in this case probably would have been, resulted from an
absence of proper Counsel.
30. The District and Circuit Courts failed to make a
sufficient record of the proceedings capable of plenary review of
the issues surrounding Applicant's Right to Counsel.
VIII.
SUMMARY
31. Relator has herein made a prima facie case for issuance
of the Extraordinary Writ of Habeas Corpus, meeting the threshold
requirements for issuance of the Great Writ as set forth in
Alabama Statute 15-21-4.32.
32. Thusly, Relator has invoked the duty of an authorized
court to issue the Extraordinary Writ of Habeas Corpus forthwith,
pursuant to Alabama Statute 15-21-8, in that:
... [T]he judge to whom the application for a writ of habeas
corpus is made must grant the same without delay, unless it
appears from the petition itself or from the documents
thereunto annexed that the person imprisoned or restrained
is not entitled to the benefit of the writ under the
provisions of this chapter.
Application for Extraordinary Writ of Habeas Corpus:
Page 11 of 13
RELIEF REQUESTED
Wherefore, all premises considered, Richard Hamilton
Hayward, Relator on behalf of your Applicant, respectfully
requests, on the prima facie showing, as is set forth in this
Application for the Extraordinary Writ of Habeas Corpus, that
this honorable Court grant the following relief:
(1) Issue, forthwith, the Extraordinary Writ of Habeas Corpus;
and,
(2) Authorize the issuance of a reasonable and prudent personal
recognizance appearance bond, pending a statutorily
sufficient adjudicatory hearing on the Extraordinary Writ of
Habeas Corpus; and,
(3) Fix a date and time certain at which a statutorily
sufficient adjudicatory hearing may be held in a dispositive
determination of the propriety of the present restraint upon
the liberty of your Applicant; and,
(4) Issue any and all other and added relief to which Applicant
may show Himself to be, or is otherwise, justly entitled at
law, or in equity, and which this Court deems to be just and
proper in this action.
Thank you very much for your consideration.
Dated: March 22, 1997
Respectfully submitted,
/s/ Mike Kemp
__________________________________________________
William Michael Kemp, Sui Juris
Citizen of Alabama state
(expressly not a citizen of the United States)
All Rights Reserved without Prejudice
Application for Extraordinary Writ of Habeas Corpus:
Page 12 of 13
VERIFICATION
STATE OF ALABAMA )
)
COUNTY OF ETOWAH )
Before me, the undersigned authority, on this day personally
appeared Richard Hamilton Hayward who, after being duly sworn,
did depose and state:
"My name is Richard Hamilton Hayward, I am over twenty-one (21)
years of age, have never been convicted of a felony or a crime of
moral turpitude, and I am competent to make this affidavit. I am
the Relator in the foregoing Application for the Extraordinary
Writ of Habeas Corpus, and all statements, allegations, denials
and attachments contained therein are true and correct, to the
best of My current information, knowledge and belief."
/s/ Rich Hayward
________________________________
Richard Hamilton Hayward
Given under my hand and seal this ____ day of March, 1997
______________________________________________
Notary Public, in and for the State of Alabama
__________________________________________
Name of Notary (printed)
Application for Extraordinary Writ of Habeas Corpus:
Page 13 of 13
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Alabama v. Kemp